The requirement for an application to condone the delay under O.41, R.3A of the Civil Procedure Code is mandatory, but the deficiency is a curable defect, and if the required application is filed subsequently, the appeal can be treated as presented in accordance with the requirement.

1. Leave granted.

2. A learned Single Judge of the High Court of Madhya Pradesh held that an appeal filed out of time unaccompanied by an application to condone the delay is liable to be axed down at the threshold and hence, the situation cannot be rectified by filing an application at any later stage. Learned Single Judge rejected a second appeal on the sole ground that the delayed appeal was presented without accompanying an application to condone the delay. An order so passed by the High Court is now being assailed before us by special leave.

3. A suit was filed by the respondents against the State of Madhya Pradesh and one of its Sales Tax Officers for a decree of declaration of their title and consequential injunction in respect of a residential building. The suit was dismissed on the ground of want of jurisdiction to entertain the suit. The plaintiffs filed an appeal before the District Court against the dismissal and the District Judge reversed the decision of the trial court regarding jurisdiction and remanded the case to the trial court for disposal of the suit on

merits.

4. On 10.12.1996, the appellants filed a second appeal before the High Court challenging the judgment and decree passed by the District Judge in the first appeal. There was some delay in filing the said second appeal but when it was presented, no application for condoning the delay was filed by the appellants along with the appeal. However, appellants filed such an application under S.5 of the Limitation Act on 6.1.1997.

5. On 31.1.1997 the High Court issued notice to the respondents on the appeal, without deciding the delay application. Long thereafter, the respondents moved the High Court for disposal of the appeal on the ground that it is barred by limitation.

6. Learned Single Judge of the High Court allowed the said motion of the respondents and dismissed the second appeal filed by the appellants by observing thus:

"A perusal of provision of O.41, R.3A shows that when an appeal is presented after the expiry of the period of limitation specified therefor, it shall be accompanied by an application supported by affidavit setting forth the facts on which the appellant relies to satisfy the court that he had sufficient cause for not preferring the appeal within such period."

7. The appellants cited before the learned Single Judge a decision of the Karnataka High Court in State of Karnataka v. Nagappa (AIR 1986 Karnataka 199) but he declined to follow the dictum therein, on the premise that another Single Judge of the M.P. High Court had taken a different view earlier, regarding the legal consequences of not filing an application for condoning the delay along with the filing of the appeal. Learned Single Judge has stated the following for the purpose of meeting the aforesaid contention advanced by the appellants.

"Similar question had arisen before this Court in First Appeal No. 107/95, decided on 3.8.95 and this Court took the view that as the appeal was not accompanied with application for condonation of delay and affidavit, stating the fact, the appeal was not competent. In view of this specific finding of the learned Single Judge, the decision of the Karnataka High Court cannot help the learned Counsel for the appellants."

8. Learned Counsel for the appellants contended that the High Court has placed a very narrow construction on R.3A of O.41 of the Code of Civil Procedure (for short 'the Code') which resulted in pre-empting the right of appeal conferred by the statute, because the court had the power to condone the delay on showing reasonable explanation for it. In order to decide the said question we have to make a short survey of the relevant Rules in the Code.

9. 0.42, R.1 of the Code says that the Rules in 0.41 shall apply, so far as may be, to appeals from appellate decrees. 0.41, R.1 says that every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the court or to such officer as